Special Needs Planning
“Special Needs” is the term used to describe an individual who, due to a physical or mental disability, needs special services to ensure that he or she attains and maintains the highest quality of life possible. At FLP, we look at these needs in a holistic way, helping clients formulate a blueprint for receiving the best care possible while enjoying financial security. The blueprint may include establishing a guardianship, Supplemental Needs Trusts, ABLE accounts, and/or transition planning, which are all discussed below.
Most often, our clients are the parents of children who are intellectually or developmentally disabled. They are committed to ensuring the best standard of living for their child both now and in the future. They are especially concerned about what might happen to their son or daughter after their deaths. It’s difficult to plan for a child’s future while in the midst of caring for the child which often leads to procrastination. However, if parents want to guarantee a safe and happy life for their child, planning is essential. A child’s future cannot be left to chance.
Whether or not to bring a guardianship proceeding is often a difficult decision. Does an autistic child need a guardian? What if he or she has always been able to attend traditional classes and not need special education? What are his or her wishes? Parents want to respect the child’s right to self-determination but want him protected. Can he or she handle finances or have the judgment necessary to remain safe from undue influences that put them at risk physically, emotionally, or financially?
Courts are reluctant to take away anyone’s rights, including a child’s, without the appropriate doctors’ opinions, independent guardian ad litem’s recommendations, or even meeting the child themselves. Everyone has a right to due process and the Court is respectful of those rights. Parents can be assured that the unique circumstances of the child will be carefully considered and the correct decision rendered.
Does the parent have to bring a guardianship before the child reaches 18? No, but it is usually recommended to do so, since once a child turns 18, he or she is legally free to make their own decisions. For children who fit these categories, the proceeding is conducted under Article 17-A of the SCPA and takes place in the Surrogate’s Court.
Special Needs Trusts
A Special Needs Trust, also sometimes known as a Supplemental Needs Trust, is a legal entity that owns assets on behalf of a disabled individual without effecting their eligibility for public benefits such as Medicaid or Supplemental Security Income. (“SSI”) The assets within the trust are not countable toward an individual’s eligibility for these programs. The purpose is to use the funds “to supplement, not supplant” benefits and services provided by the government. They are used to enhance the quality of the beneficiary’s life.
These trusts can be established by a third party with that party’s funds (third party trust), or with the funds of the disabled person (first party trust). First party trusts are usually used when a disabled person receives proceeds from the settlement of a lawsuit or an inheritance distribution.
In 2014, Congress passed the Achieving a Better Life Experience (ABLE) Act, authorizing states to create tax-free savings accounts that disabled individuals could use for disability-related expenses without affecting an individual’s eligibility for public benefits. Only individuals whose disability occurred prior to turning 26 can establish an ABLE account. There can only be one account per individual, but no limitation on who can contribute. Annual contributions cannot exceed $15,000.00. The first $100,000 in ABLE accounts is exempt from the SSI $2,000 individual resource limit. If the ABLE account balance, when combined with other resources, ever exceeds $100,000, the beneficiary’s SSI cash benefit will be suspended. If resources are no longer exceeded by the amount over $100,000, benefits are reinstated without time limit.
Transition planning is usually low on the list of priorities for the parents of disabled children, but critical in ensuring the child’s quality of life extends beyond the lives of the parents. Through their school districts, academic and social skills are usually addressed during their childhoods. Does the child aspire to eventually live independently? Will they be capable of doing so? Is a group or medical setting more appropriate? These are concerns that should be addressed before the child reaches adulthood. Who will play a role in advocating for the disabled individual when parents can no longer do so? Is there family available to serve in that capacity? These are very difficult topics of conversation, but necessary. Our firm can assist in providing information and guidance.